N3700

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. NOS. 546 & 547 OF 2004

BETWEEN:

YUYE KULAU & TUPO KANKUWA
Plaintiffs

AND:

MOTOR VEHICLES INSURANCE LIMITED
Defendant

Mt Hagen: David, J
2008: 18-20 August & 15 November

NEGLIGENCE – claims for damages – claims arising from one accident – alleged accident caused by negligence of driver - proceedings under Motor Vehicles (Third Party Insurance) Act, Chapter 295 - liability denied – must establish category of claim under s.54 (1) – onus not discharged – claims fraudulent – claims dismissed.

Cases:

Garo Kei v. MVIT [1992] PNGLR 195
Imambu Alo v. MVIT [1992] PNGLR 487
Lucy Kongupi v. MVIT (1992) N1043
Martin Kilte v. MVIT (1992) N1085
Bepiwan Ambon v. MVIT (1992) N1116
Waro Moses v. MVIT [1993] PNGLR 63
Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215
Kamtai Waine v. MVIT [1993] PNGLR 446
Moki Gelua v. MVIT (1993) N1043 
Sidi Adevu v. MVIT [1994] PNGLR 57
MVIT v. Nande Waige & Ors [1995] PNGLR 202
Jack Lundu Yalao v. MVIT (1995) N1386
Pare Umbe v. MVIT (1997) N1574
Joe Danga v. MVIT (1997) N1665
John Basil Ziporo v. MVIL (2008), WS No.1470 of 2003, Unreported Judgment of David, J delivered on 20 February 2008

Counsel:

P. C. Kopunye, for the Plaintiffs
J. Naipet, for the Defendant

JUDGMENT

15 November, 2008

1.	DAVID, J: INTRODUCTION: On 18 May 2004, the Plaintiffs filed separate proceedings against the Defendant pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act (the Third Party Insurance Act) claiming damages for injuries each of them claim to have sustained from a motor vehicle accident. 

2.	The Defendant denies liability. It contends that the Plaintiffs have not discharged the onus placed on them to prove their claims under one of the categories specified in s.54 (1) of the Third Party Insurance Act. The Defendant also states in the alternative that there was no motor vehicle accident at all. 

3.	This case is therefore about liability and quantum.

BACKGROUND

The alleged accident

4.	The alleged incident that resulted in the Plaintiffs sustaining the injuries is said to have occurred near Kundiawa along the Okuk Highway in the Simbu Province in the early hours of 6 October 1998 at about 04.00 am. The Plaintiffs claim that they were passengers on a motor vehicle owned by one Wase Dokolo (the owner) bearing registration number LAE529, a Ford utility (the motor vehicle) and driven by one Logiok Nawas (the driver) when it was driven off the bitumen road and collided against the side of the road resulting in them being thrown out.

Statement of Claim

5.	The pleadings in both proceedings are basically similar and they differ only in relation to the nature and extent of injuries sustained to their right eyes and the amount of damages claimed. 

6.	The Plaintiffs who are male adults are village subsistence farmers, married with dependents and are originally from Waramanz, Upper Jimi in the Western Highlands Province.

7.	As alluded to earlier, the Plaintiffs claim that they were passengers on the motor vehicle when the alleged accident occurred. 

8.	The motor vehicle was insured with the Defendant under a third party policy number 1524942 which was to expire on or around 23 September 1999.

9.	The Plaintiffs assert that the alleged accident occurred because the driver drove the motor vehicle negligently when he; failed to keep any or any proper look out; drove at a speed which was excessive in the circumstances; failed to apply the brakes in time to avoid the accident; failed to stop, slow down or alter the course of the motor vehicle at the time to avoid the accident; failed to take enough sleep or rest whilst driving in the early hours of the morning thereby causing loss of concentration and fatigue and allowing the accident to occur; failed to maintain the motor vehicle to be driven only on the bitumen surface of the road, but allowed it to be driven on to the side and onto the gravel area resulting in him losing control of it; and failed to drive the motor vehicle with due care and attention.

10.	Yuye Kulau claims that he sustained facial lacerations and abrasions, general abrasions to his body and 100 % permanent loss of vision due to the loss of his right eye.

11.	Tupo Kankuwa claims that he sustained facial lacerations and abrasions, general abrasions to his body and 60 % loss of vision to his right eye.

12.	Each Plaintiff claims damages for; pain, suffering and loss of amenities of life for the extent of loss of vision to the right eye and in the case of Yuye Kulau for loss of an eye as well and for minor injuries received; proven and undocumented special and out of pocket expenses; 8% interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act and costs.

Defence

13.	On 2 July 2004, the Defendant filed its defences in response to both statements of claim which are in similar terms. It denied liability, but pleaded in the alternative, inter alia, contributory negligence on the part of each Plaintiff and in the further alternative that each Plaintiff was not involved in any motor vehicle accident at all. For convenience, I set out below the terms of the Defendant’s defence:- 

"1.	The Defendant admits paragraph 2 of the Statement of Claim.

2.	The Defendant does not know and cannot admit paragraphs 1, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 and the further paragraph claimed as 14 of the Statement of Claim.

3.	The Defendant denies paragraph 9 and particulars of negligence contained therein.

4.	Further or in the alternative, if the Plaintiff was injured as alleged (which is denied), then, the Defendant says that such injuries were caused by or as a result of the alleged negligence of the driver and that such injuries were caused by or as a result of his own negligence.

Particulars of Negligence

(a)	Failing to take any or any adequate care for his own safety.

(b)	Consenting to being driven in a vehicle which was in the care an control of a drunk driver and by reason of which the alleged driving, management or proper judgment of the manner of driving was impaired and this fact was known to the Plaintiff before and during the course of the journey.

(c)	The Plaintiff jumped off a moving vehicle without due care and or regard for his own safety.

(d)	The Plaintiff was moving around in the moving vehicle and thereby easily placing himself in the position of risk.

5.	Further or in the alternative, the Defendant denies that the Plaintiff was involved in a motor vehicle accident or at all."

THE ISSUES

14.	The pertinent issues for determination are:-

1.	Whether the Plaintiffs have established their claims under one of the categories prescribed under s.54 (1) of the Third Party Insurance Act?

2.	Whether the Plaintiffs were involved in the alleged accident?

3.	If the first issue is decided in favour of the Plaintiffs, was the driver negligent?

4.	If the Defendant is liable, did the Plaintiffs contribute to their injuries by their own negligence?

5.	If the Defendant is liable, what are the Plaintiffs’ damages?

THE RELEVANT LAW

15.	A person who wants to make a claim for damages for death or bodily injury arising from a motor vehicle accident must make the claim under s. 54 of the Third Party Insurance Act. It is not disputed that the claim must be brought against the Defendant, Motor Vehicles Insurance Ltd and not against the owner or the driver of the motor vehicle: see ss. 1 (definition of "successor company") and 54 (1) of the Third Party Insurance Act. 

16.	Before filing an action against the Defendant, a claimant must give notice of an intention to make a claim to the Defendant within a period of six months after the occurrence out of which the claim arose or within such further extended period under the dictates of s. 54 (6) of the Third Party Insurance Act. That is not in issue in this case.

17.	Section 54 (1) of the Third Party Insurance Act specifically provides for liability of the Defendant in three (3) categories where death or bodily injuries have resulted from the use of:-

1.	a motor vehicle insured under the Act; or

2.	an uninsured motor vehicle in a public street; or

3.	a motor vehicle on a public street where its identity cannot, after due enquiry and search, be established. 

18.	The Plaintiff must therefore firstly establish under which of the above categories this claim comes under or in other words the motor vehicle involved in the accident must be properly identified: see Martin Kilte v. MVIT (1992) N1085; Garo Kei v. MVIT [1992] PNGLR 195; Lucy Kongupi v. MVIT (1992) N1043; Waro Moses v. MVIT [1993] PNGLR 63 and Moki Gelua v. MVIT (1993) N1043. 

19.	The fact of registration and insurance requires strict proof: Bepiwan Ambon v. MVIT (1992) N1116; Garo Kei; Imambu Alo v. MVIT [1992] PNGLR 487; Pare Umbe v. MVIT (1997) N1574 and Joe Danga v. MVIT (1997) N1665.

20.	It is generally the plaintiff who has the onus of proving on the balance of probabilities; under what category his or her claim falls; negligence and damages. Once a claim under one of the 3 categories is made out, negligence must then be proven against the driver of the motor vehicle. Where liability is established, damages will have to be assessed consistent with the limit set by s.49 (2)(a) of the Third Party Insurance Act, but the extent of recovery may be affected by a consideration of contributory negligence on the part of the claimant. 

THE PLAINTIFFS’ EVIDENCE 

21.	The Plaintiffs rely on oral and documentary evidence. 

22.	The Plaintiffs called 5 witnesses who all gave sworn oral testimonies. They are Yuye Kulau, Tupo Kankuwa, Chief Sergeant John Waran, Dr. Allan Kulunga and Dr. George Jacob.

22.	Documents admitted into evidence are:-

1.	Affidavit in Support of Claim by Yuye Kulau sworn on 10 September 2007 and filed on 11 September 2007, Exhibit "A" (by consent except Annexure "A");

2.	Affidavit in Support of Claim by Tupo Kankuwa sworn and filed on 10 September 2007, Exhibit "B" (by consent except Annexure "A");

3.	Affidavit of Chief Sergeant John Waran sworn on 14 May 2004 and filed on 18 May 2004 in respect of WS 546/2004, Exhibit "C" (by consent); 

4.	Affidavit of Chief Sergeant John Waran sworn on 14 May 2004 and filed on 18 May 2004 in respect of WS 547/2004, Exhibit "D" (by consent):

5.	Affidavit of Dr. Allan Kulunga sworn on 12 May 2004 and filed on 18 May 2004 in respect of WS 546/2004, Exhibit "E" (by consent);

6.	Affidavit of Dr. Allan Kulunga sworn on 12 May 2004 and filed on 18 May 2004 in respect of WS 547/2004, Exhibit "F" (by consent); 

7.	Affidavit of Dr. George Jacob sworn on 26 July 2004 and filed on 30 July 2004 in respect of WS 546/2004, Exhibit "G" (by consent);

8.	Medical Report of Dr. George Jacob dated 12 August 2008 in respect of Tupo Kankuwa, Exhibit "H" (by consent);

9.	Affidavit of Ruben Sakiki sworn on 11 May 2004 and filed on 18 May 2004 in respect of WS 546/2004, Exhibit "I" (contested);

10.	Affidavit In Support of Claim containing Court Depositions by Peter Kopunye sworn and filed on 24 July 2007 in respect of WS 546/2004, Exhibit "J" (contested);

11.	Affidavit of Ruben Sakiki sworn on 29 March 2004 and filed on 18 May 2004 in respect of WS 547/2004, Exhibit "K" (contested);

12.	Affidavit in Support of Claim containing Court Depositions by Peter Kopunye sworn and filed on 24 July 2007 in respect of WS 547/2004, Exhibit "L" (contested).

SUMMARY OF THE EVIDENCE

23.	I summarise the Plaintiffs’ evidence below.

Oral evidence of Yuye Kulau

24.	He gave evidence in the Jiwaka language as he does not know Tok Pisin. 

25.	He is a villager initially from Manz, Jimi in the Western Highlands Province, but now resides at a village called Kondwil in Nondugl also in the Western Highlands Province. 

26.	He stated that there were several passengers on the motor vehicle, but only four (4) of them including himself suffered injuries in a motor vehicle accident. That accident occurred 10 years ago near Kundiawa while travelling to his village from Lae. He initially stated that the accident occurred in the evening, but later retracted saying it occurred in the early hours of the morning. Two (2) of the injured passengers have already received payments he said.

27.	The motor vehicle was owned by one Wase Doulo and it was driven by a Loko Nawas at the time. He got on the motor vehicle because the motor vehicle was from Jimi and he also knew the driver. He sat at the back tray of the motor vehicle and was thrown out of the back when the motor vehicle overturned. 

28.	He suffered injuries to his right eye when a piece of the broken windscreen pierced his eye as he lay on the ground and also to his body and to his left forehead. He became unconscious and did not know what happened later. His eye was removed and is the right one without the eyeball. 

29.	After the accident, the other passengers assisted the driver push the motor vehicle onto the road, got it fixed and they continued their journey all the way to his village.

30.	His sons or relatives then carried him on a stretcher to the Kol Health Centre which is some distance away from his village. In cross-examination, he said he was driven all the way to the Kol Health Centre where he was admitted and received treatment. He stayed at the Kol Health Centre for a week. A doctor there called Ruben did a medical report, but he has since gone to Popondetta. He cannot be located to be a witness despite searching for him. 

31.	It is quite a long distance from Kundiawa to his village and the Kol Health Centre and the travelling time by motor vehicles would be about half (1/2) a day. 

32.	He was taken all the way to the Kol Health Centre rather than to one of the hospitals nearby at Kudjip or Kundiawa because it was thought that those hospitals were closed and the doctors were asleep at that time of the morning and the driver also panicked fearing that he might die. 

33.	He stated that the police road accident report was brought to him by the driver when he was still at the Kol Health Centre, but when further pressed in cross-examination he said it was after he was discharged while staying in the village.

34.	He has never been interviewed by the police about the alleged accident.

35.	As to his Affidavit (Exhibit "A"), he said it was read to him and he fully understood the content before signing it. 

Oral evidence of Tupo Kankuwa

36.	He gave evidence in the Jiwaka language as he does not know Tok Pisin.

37.	He is also a villager initially from Manz, Jimi in the Western Highlands Province, but now resides at a village called Kondwil in Nondugl also in the Western Highlands Province. 

38.	He sustained major injuries to his right eye and nose in a motor vehicle accident that occurred in the early hours of the morning near Kundiawa while travelling from Lae to his village. However, he could not remember the year when the accident occurred because he is old. Other injuries to his body were minor which have healed over the years. His eye was pierced by a piece of the broken windscreen as he lay on the ground. There were many passengers who sat at the back of the motor vehicle, but only 4 of them were injured including him. Some who were young jumped off. The driver jumped off as well and therefore was not injured. Yuye Kulau and 2 others namely Betty Banz and Goye Aipe who are also from the same village were also injured in this accident. Betty Banz and Goye Aipe have already received their monies through out of court settlements and they were told by them.

39.	The motor vehicle owned by a Wasa Doulo was driven wrongly by one Loko Nawis from Manz which resulted in the accident. He jumped on the motor vehicle because he thought it was from his village so that he would be dropped off at his doorstep. When the motor vehicle overturned, they were thrown out of the motor vehicle and to the front side of the motor vehicle. 

40.	After the accident, the motor vehicle was pushed onto the road by other passengers and driven to Jimi. Asked in cross-examination why in paragraph 13 of his Affidavit he stated that they pushed the motor vehicle onto the road, he said he did not assist because he was injured and not fit at the time. He said what he was stating now was what had actually happened. The translation was done in his language by the lawyer’s clerk he said. He was dropped off at Manz and the driver returned to his village. He was then taken by his sons to the Kol Health Centre in the afternoon. Mountains separate Jimi and Whagi and the health centre is located far away on the Whagi side, he said.

41.	At the Kol Helath Centre, Dr. Ruben Sakiki treated him and he was hospitalised for 1 week. He provided a medical report and advised him to see the police and a lawyer. Dr. Ruben Sakiki is now in Popondetta. He told him to come and be his witness, but he could not because he did not have the money to bring him up. On the advice of his lawyer, he later saw an eye doctor at the Mt. Hagen General Hospital. 

42.	Due to the accident occurring in the early hours of the morning and the severity of the injuries sustained, the driver decided not to take them to Kundiawa for medical treatment as it was thought that the doctors there were asleep. Therefore panic-stricken, the driver drove them all the way to the village. When pressed in cross-examination why go to the village when the emergency sections at the nearest hospitals at Kundiawa and Kudjip are open 24 hours, he maintained that the driver panicked and wanted the relatives to see the injured and later help them take the injured to a hospital. 
 
43.	The driver reported the accident. However, when pressed in cross-examination, he said it was the Health Centre driver who reported the accident. The driver was also charged by the police. He went to Kimbe and died.

44.	He received a copy of the police road accident report after he was discharged from the Kol Health Centre and while staying in the village.

45.	He was never interviewed by the police about the alleged accident. 

46.	As to his Affidavit (Exhibit "B"), he said the lawyer’s clerk translated the content in his language before signing it. 

C/Sgt. John Waran

46.	He is a policeman now holding the rank of Chief Sergeant. He has been in the police force for about 34 years. He is now stationed at the Wabag Police Station, Enga Province and is currently the OIC, Traffic there. 

47.	In 1998, he was based in Kundiawa, Simbu Province. He was attached to the general duties and also the Traffic Section at the Kundiawa Police Station. He was actually the OIC, Traffic there. Whilst in Kundiawa, he attended to many road accidents and was familiar with reporting road accidents including the compilation of road accident reports.

48.	He recalled that on 10 October 1998, a person claiming to be the driver of a motor vehicle involved in an accident that had occurred 5 days earlier and in the company of relatives of some injured persons went to the Kundiawa Police Station when he was on duty. He was called upon to investigate the accident. It was reported that the accident occurred at Migende along the Okuk Highway on 5 October 1998 at around 04.00 am when 4 passengers sustained injuries. The motor vehicle was never brought to him when the accident was reported and he never conducted an inspection of it as it was in Jimi. The driver was given 4 days to take the motor vehicle into Kundiawa Police Station, but he said it was undergoing repair and therefore could not take it in. He was the investigating officer and all information about the accident was given to him by the driver and relatives of the injured. He attempted to go to Jimi, but bad road conditions prevented him from going and returned from Banz.

49.	He never interviewed any passengers who were on the motor vehicle. When asked in cross-examination whether he interviewed any independent witnesses, he initially said he did, but when pressed further he said he could not recall. He later said he interviewed a passenger. When again pressed further, he said he interviewed no one including the owner of the motor vehicle.

50.	Upon receiving the report, he attended the scene of the accident on the same day, conversed with witnesses and took measurements. He noticed tyre marks at the point where the motor vehicle went off the bitumen road; travelled over loose gravel thence coming into collision with the side of the road and saw broken glasses. He also saw the uprooting of grass along the left hand side of the road in the direction of Mt. Hagen. After getting measurements, the sketch of the scene, he returned to Kundiawa Police Station where he then interviewed the driver and recorded the names of the injured passengers.

51.	After finalising his investigation, he arrested the driver and charged him on 14 October 1998 for driving without due care and attention under s.17 (2) of the Motor Traffic Act. He normally laid the charges. In paragraphs 11 and 12 of his Affidavits, he deposes that he charged the driver under s.17 (1)(a) of the Motor Traffic Act because the driver was at fault for continuing to drive that evening and morning without any sleep or rest. However, he was informed by the prosecutor as he did not attend Court that a warrant was issued for the arrest of the driver after he failed to appear before the District Court after the first adjournment. 

52.	The Road Accident Report No.67/98 which is attached as annexure "A" to both of his Affidavits is the report he compiled on 14 October 1998 which was reviewed by Senior Constable Jack Akalyanda. When asked in cross-examination whether it was normal to produce road accident reports 8-9 days after the accident, he said it depended on situations such as the remoteness of villages of injured persons. The Road Accident Report was released to relatives of injured passengers when a receipt was produced, but he could not recall who he gave it to and when he released it, but the latter information could be found in the report he said. 

53.	The Road Accident Report provides the following major details:

1.	The motor vehicle is a Ford utility 1990 make bearing registration number LAE529 which was to expire on 23 September 1999;

2.	The motor vehicle was insured under third party insurance policy number 1524942;

3.	The owner of the motor vehicle was Wase Dokolo, a male;

4.	According to the reference keys used in the report, the driver of the motor vehicle was; a male adult called Logiok Nawas aged 38 years who had a full Class 1 Driving Licence No.193598 which was expiring on 19 May 2000; and he was not injured or suspected of drink driving.

5.	The Accident occurred about 8 km from Kundiawa on Tuesday 5 October 1998 around 04.00 am.

6.	Passenger casualties were:-

(a)	Betty Bam - According to the reference keys used in the report, she is a female adult aged 35 years who was hospitalised for injuries to her head and buttock areas while a passenger in a bus/truck/utility and was not suspected of consuming liquor;

(b)	Tupo Kankuwo - According to the reference keys used in the report, he is a male adult aged 26 years who was hospitalised for injuries to his head area while a passenger in a bus/truck/utility and was not suspected of consuming liquor;

(c)	Goi Ape - According to the reference keys used in the report, he is a male adult aged 27 years who was hospitalised for injuries to his front torso area while a passenger in a bus/truck/utility and was not suspected of consuming liquor; and

(d)	Yuye Kulau - According to the reference keys used in the report, he is a male adult aged 24 years who was hospitalised for injuries to his head area while a passenger in a bus/truck/utility and was not suspected of consuming liquor.

7.	The cause of accident was the driver losing control of the motor vehicle as it left the bitumen section of the road and onto the gravelled part of the road;

8.	Action proposed was that the driver be charged with due care and attention.

9.	At the back of the copy of the Road Accident Report annexed to the Affidavit of C/Sgt. John Warran filed in support of Tupo Kankuwa’s claim, Exhibit "D", a Wase Yombal of Warmanch village, Jimi is listed as a witness. No such information appears at the back of the copy of the Road Accident Report annexed to the Affidavit of C/Sgt. John Warran filed in support of Yuye Kulau’s claim, Exhibit "C".

Dr. Allan Kulunga

54.	He is a specialist surgeon. He is a holder of degrees in Bachelor of Medicine and Bachelor of Surgery and a Masters in Medicine (Surgery). He has been operating a private medical practice called Kintip Surgery in Mt. Hagen for many years now.

55.	Although he was not an ophthalmologist, he examined the Plaintiffs upon referral by the Plaintiffs’ lawyers. Both of them had eye injuries. He said ophthalmologists are specialist doctors who would be the right persons to give an opinion for the type of injuries the Plaintiffs had. He examined the Plaintiffs on the date he wrote the medical reports which he did from information and records each patient had which was after about 3 years after the alleged accident. 

Yuye Kulau

56.	The relevant medical report is dated 17 August 2001. His prognosis was that the Plaintiff’s right eye ball disappeared completely and it was not there. It could have burst he said. There was no need for him to be referred to an ophthalmologist unless the Plaintiff wanted a glass eye. It was a 100 % permanent loss of his right eye. The left eye had normal vision 

57.	He also reports that the Plaintiff was admitted to the Kol Health Centre where he was administered with; primary debridement of the eye; antibiotic and dressing; and analgesic for pain. He further describes the general appearance of the Plaintiff as a ‘[m]an in his late forties (40’s)’. 

Tupo Kankuwa

58.	The relevant medical report is dated 9 August 2001. His prognosis was that the Plaintiff had peripheral vision caused by a permanent ulcer in the cornea or pupil of his right eye resulting in about 60 % permanent loss of vision. The ulcer could have resulted from trauma, virus or any injury he said. He recommended that the Plaintiff see an ophthalmologist or do a cornea graft. 

59.	He also reports that the Plaintiff received medical treatment at the Minj Health Centre and was; administered with wound debridement and dressing and eye ointment; and advised to rest. 

60.	He further describes the general appearance of the Plaintiff as a ‘[f]it man’. 

Dr. George Jacob

61.	He is an Ophthalmologist and has been in practice since 1989. He is a holder of degrees in Bachelor of Medicine and Bachelor of Surgery and a Diploma in Ophthalmology. 

62.	He examined the Plaintiffs upon referral by the Plaintiffs’ lawyers. They were examined on the dates the reports were made. 

Yuye Kulau

63.	The relevant medical report is dated 13 July 2004. He confirms that the Plaintiff was examined by him in relation to his eye problem at his clinic. The Plaintiff told him about the background of the injury to his right eye which he said he sustained in 1998 and was treated at a health centre. The Plaintiff’s right eye went into complete phthisis (shrunken eye ball) and therefore has a 100 % permanent loss of vision to his right eye 

64.	He also said that; an eye could disappear if it is ruptured at the time of injury by any object and if not properly treated; and if the Plaintiff were under his care after sustaining the injury, he could have been discharged within 6 days of admission as the maximum. 

Tupo Kankuwa

65.	The relevant medical report is dated 12 August 2008. The Plaintiff told him about injuries he sustained to his face and eye following which he developed defective vision in his right eye. His examination of the Plaintiff revealed that he has heterochromia iridium, ie, one eye is blue (right) and the other is brown (left). The right eye has a small dilated pupil (traumatic mydriasis) which is associated with trauma or injury or something hitting the eye with blunt force or trauma and not by broken glass or sharp object, but he could not predict recovery. He also said that the eye has early cataract; and his central retina had degenerative changes which could either happen post-traumatic or because of old age. The Plaintiff had a 65 % visual incapacity in the right eye while his left eye was normal because of old age.

Affidavit of Yuye Kulau

66.	A Muneka Mugang issued a certificate stating that this Affidavit was read to Yuye Kulau in the Pidgin language and Yuye Kulau appeared to understand its content clearly. This is contradictory to Yuye Kulau’s oral evidence where he stated that he does not know Pidgin. Yuye Kulau gave evidence in the Jiwaka language. The Court will place no weight in the evidence contained in the Affidavit although it was admitted by consent as I am not convinced that Yuye Kulau would have understood the matters written in the Affidavit in English and translated in the Pidgin language which he did not know. 

Affidavit of Tupo Kankuwa 

67.	A Muneka Mugang also issued a certificate stating that this Affidavit was read to Tupo Kankuwa in the Pidgin language and Tupo Kankuwa appeared to understand its content clearly. This is also contradictory to Tupo Kankuwa’s oral evidence where he stated that he does not know Pidgin. Tupo Kankuwa gave evidence in the Jiwaka language. The Court will also place no weight in the evidence contained in the Affidavit although it was admitted by consent as I am not convinced that Tupo Kankuwa would have understood the matters written in the Affidavit in English and translated in the Pidgin language which he did not know. 

Affidavits of Ruben Sakiki

68.	He is a Health Extension Officer employed by the State and has had many years of experience behind him. In 1998 he was based at the Kol Health Centre, Jimi in the Western Highlands. He has treated many people who have sustained injuries from motor vehicle accidents and also provided reports following treatment. On 6 October 1998, he attended to Yuye Kulau and Tupo Kankuwa who were brought to the Kol Health Centre for treatment for injuries sustained allegedly following a motor vehicle accident at Kundiawa.

69.	Brief details of injuries sustained by each Plaintiff and treatment administered to them are set out below. The Plaintiffs were both brought there at 04.30 pm and also treated at 4.35 pm 

Yuye Kulau

70.	The Medical Practitioner’s Certificate reveals, inter alia, that he had a cut on his right eye and bleeding from the eye resulting in permanent damage. He was under medication for 2 weeks.

71.	The document entitled Treatment Sheet for Ward 1 for the period 6 to 10 October 1998, under the names column, shows that the patient was a male aged 27 years who had a fractured arm. The daily columns reveal that treatment administered included the provision of Asprin, Chloroquine, Crystapen and Amoxycillin. 

Tupo Kankuwa

72.	The Medical Practitioner’s Certificate also reveals, inter alia, he had a cut to his left eye (not involving the pupil) which was sutured and he later recovered. Dry dressing was applied to the right eye and nose on daily "OPD" medication.

73.	The document entitled Treatment Sheet for Ward 1 for the period 6 to 10 October 1998, under the names column, shows that the patient was a male aged 45 years who had injuries to both eyes. In the same column, it is shown that treatment was also administered on 11 October 1998. The daily columns reveal that treatment administered included the provision of eye ointment, asprin, crystapen and amoxycillin.

Affidavits of Peter Kopunye 

74.	He is the Plaintiffs’ lawyer.

75.	On instructions from his clients, he initially made enquiries with the Clerk of the Kundiawa District Court by a letter from his firm of 27 November 1998 to confirm; whether the driver was charged and brought before the Court to answer the charge; and if indeed charged, to provide him with a copy of the Information that was laid and also to advise on the status of the case. That letter was received by the Kundiawa District Court on 7 January 1999.

76.	Copies of the Information laid by John Warran then as Sgt. Major as the Informant on 29 October 1998 against the driver for driving without due care and attention under s.17 (2) of the Motor Traffic Act and depositions of the District Court inclusive of the record of proceedings of the District Court in relation to proceedings on 29 October 1998 and 3 November 1998 were received by Kopunye lawyers on 14 January 1999. Those records confirm that; the driver was admitted to K50.00 bail; the driver’s case was mentioned before the District Court on 29 October 1998 and was adjourned to 3 November 1998 at 09.30 am; the driver did not appear before the District Court on 3 November 1998 at 09.30 am when the court issued a warrant for his arrest, his bail was forfeited and the case was adjourned sine die. Constable Mondo was the prosecutor on 29 October 1998 and 3 November 1998. 

THE DEFENDANT’S EVIDENCE

77.	The Defendant offered no evidence.

DISCUSSION OF ISSUES, LAW AND EVIDENCE

Whether the Plaintiffs have established their claims under one of the categories prescribed under s.54 (1) of the Third Party Insurance Act?

Submissions of the Plaintiffs

78.	Mr. Kopunye of counsel for the Plaintiffs submitted that his clients were among 4 passengers on the motor vehicle who were injured in the alleged accident which occurred some 10 years ago. He argued that whilst the Defendant has settled the claims lodged by the other 2 passengers, it has refused to settle his clients’ claims resulting in the Plaintiffs instituting separate proceedings.

79.	Counsel argued that the alleged accident occurred nearly 10 years ago and the Court must accept and understand that some of the difficulties experienced in producing the witnesses as well as some of the minor discrepancies that appear in the Plaintiffs’ evidence are attributed to the passage of time. Counsel submitted that when taking into account the totality of all the evidence adduced before the Court, it should be satisfied that the Plaintiffs have established by evidence that they were passengers on the motor vehicle when it was involved in the alleged accident and each of them sustained injuries as a result.

80.	Counsel enumerates in his brief written submission the facts he says that have been established and has urged the Court to accept them in favour of the Plaintiffs. I recite them as follows:-

"1.	On the morning of the 6th October 1998, there was a motor vehicle accident at a point between Gon Hill and Mingende just after passing Kundiawa Township as one drives from Lae to Hagen;

2.	The Plaintiffs were passengers in the said motor vehicle identified as LAE 529, a Ford Utility Red in colour and the accident occurred in the earlier hours of the morning;

3.	The driver after driving for a long period of time from Lae to Kundiawa and to Jimi, appeared to have gone to sleep and allowed his vehicle to be driven off the bitumen and skidded to the side of the road, colliding with the side and grass of the side of the road.

4.	There were a number of passengers in the motor vehicle but only four (4) sustained injuries.

5.	Out of the four (4) that sustained injuries, two (2) of them got compensated by the Defendant namely Betty Ban and Goi Aipe whilst the two (2) current Plaintiffs’ claims have been denied.

6.	The motor vehicle was put back on the main road and the driver in panic drove all the way to his village in Jimi (Wara Mans Village) together with the injured people;

7.	Given the time, it took to travel, the Plaintiffs and the driver arrived at Wara Mans Village in Jimi and thereafter the Plaintiffs walked all the way to Kol health Centre and by the time they arrived at Kol Health Centre, it was about 4:30 in the afternoon on the same day of the accident.

8.	They were admitted at Kol Health Centre and stayed there for a week and they were issued with their respective reports by Ruben Sakiki.

9.	The accident was reported to Kundiawa Police Station, some five (5) days after as a result of which the drive got charged for driving without due care and attention.

10.	The policeman goes out and investigates the road accident by going to the scene of the accident, taking the measurements and compiled the normal police accident report.

11.	The driver had been charged and he failed to appear at the 2nd adjournment and his case is still pending at the District Court at Kundiawa, and has a warrant out for him to be arrested but unfortunately he has died whilst in Kimbe." (sic)

81.	Counsel submitted that discrepancies in the evidence as to why; the alleged accident was belatedly reported 5 days later; there is some contradiction about the exact description of the alleged accident; the road accident report was based on hearsay; the Plaintiffs were not taken to the nearest hospitals can be explained away. The reasons he gave are paraphrased as follows:-

1.	The distance between Kundiawa Police Station and the localities of the Plaintiffs, the owner and driver was such that it was not possible for them to travel to Kundiawa.

2.	The lapse of time for a period of over 10 years since the alleged accident and human nature tends to make people remember only bigger things and not the smaller ones.

3.	Almost all road accidents are based on hearsay. When the policeman went to the scene of the alleged accident 5 days after, he saw evidence of the alleged accident in the skid marks, broken glass or windscreen and the disturbed side of the road where the motor vehicle had gone into the bush. This was independent evidence he said.

4.	Each of the Plaintiffs provided an explanation why they were not taken to the nearest hospitals at Kundiawa or Kudjip.

Submissions of the Defendant

82. Ms. Naipet of counsel for the Defendant submitted that the Defendant in denying liability and not calling evidence, the Plaintiffs were put to the task of proving their claims.

83. She also said that while the Plaintiffs pleaded in their statements of claim that the motor vehicle was insured with the Defendant, they did not provide the necessary registration and insurance details in evidence. These details would have been given by the driver and the owner of the motor vehicle she said, but they provided no evidence. She argued that the uncorroborated evidence of the Plaintiffs and C/Sgt. John Waran which was hearsay and based on information given to him by the driver and without conducting independent searches and enquiries to ascertain the identity, registration and insurance details of the motor vehicle was insufficient.

84. She also contended that because the Defendant denied the claims in the defences filed, the Plaintiffs were put on notice to strictly prove registration and insurance relying on Kongupi, Imambu Alo, Bepiwan Ambon, Waro Moses, Moki Gelua, Martin Kilte, Garo Kei and John Basil Ziporo v. MVIL (2008), WS No.1470 of 2003, Unreported Judgment of David, J delivered on 20 February 2008. This onus has not been discharged therefore the claims should be dismissed, she said. 

Comments on submissions of parties

Evidence of C/Sgt. Waran and PC Kopunye

85.	The relevant evidence about the accident in my view is that adduced from C/Sgt. Waran and Mr. Kopunye. I will comment on the evidence of the Plaintiffs and of Ruben Sakiki later. Apart from the Road Accident Report, no other evidence was led either from the driver in particular if there were any written record of an interview between the driver and C/Sgt. Waran or the owner of the motor vehicle who was never interviewed by the police. The motor vehicle was never inspected even after C/Sgt. Waran had given the driver 4 days to take the motor vehicle into Kundiawa either because of the remoteness of the village from Kundiawa and the subsisting road conditions or that the motor vehicle stopped operating after it had been driven all the way to the village following the accident and even after it had undergone repairs. 

86.	While C/Sgt. Waran’s investigation started after a report about the alleged accident was received from the driver, he went to the scene of the alleged accident and made independent observations. Those observations are contained in the Road Accident Report.

87.	Subject to my other remarks below, I accept that the driver was charged for driving without due care and attention and a warrant for his arrest was issued after his non appearance before the District Court at Kundiawa on 3 November 1998. The evidence admitted through Mr. Kopunye corroborates that evidence. Whilst it is generally not permitted for counsel to be a witness and at the same time be counsel at a trial as was stated by Brown, J in Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215, I think the exception here is that counsel communicated directly with the District Court at Kundiawa in relation to the proceedings against the driver and the documents about those proceedings were made available to him as a result. Notice to rely on this evidence contained in Mr. Kopunye’s Affidavits was given by the Plaintiffs, but I found when ruling against the objection by the defence that no notice to cross-examine or to object to the use of those Affidavits was given pursuant to s.35 of the Evidence Act and I therefore admitted the evidence. 
 
88.	In this case, details of the registration number and insurance policy number were pleaded. The Defendant in its defences said it did not know and could not admit the allegation. In Jack Lundu Yalao v. MVIT (1995) N1386, Injia, J as he then was said this type of pleading was not permitted. There, Injia, J, as he then was, cited 2 Supreme Court cases dealing with this type of pleading namely Sidi Adevu v. MVIT [1994] PNGLR 57 and MVIT v. Nande Waige & Ors (1995) SC478 and in distinguishing those cases from the one before him (from the headnotes) His Honour stated:-

"Because the insured status of the motor vehicle which caused the injury to the plaintiff was known or ought to be known by the Defendant Trust from its own records and accounts required to be kept pursuant to s. 44, 49 and 53 of the Motor Vehicles (Third Party Insurance) Act Ch No 295, it was wrong for the defendant to plead in its defence that it did not know of and therefore could not admit the insured status of the subject motor vehicle as pleaded in the Statement of Claim. Such pleading was an inappropriate method of traversing the alleged fact; it did not disclose a reasonable defence; it caused prejudice to the plaintiff and may as well have constituted an abuse of the court's process."

89.	The trial took place without the defences being struck out. The Defendant was better placed to explain whether the motor vehicle was insured with it or not given the details of registration and insurance were pleaded. However, the Defendant did not call evidence. The only evidence recording details of the accident is the Road Accident Report initially based on information from the driver alone and other details of the accident after C/Sgt. Waran had visited the scene and recorded his observations. The District Court proceedings against the driver did not progress to a conviction which could have been useful to the Plaintiff’s cause: see ss.45 and 47 Evidence Act.

90.	Usually the tendering of the Road Accident Report containing details of the status of registration and insurance constitutes proof of insurance: see Martin Kilte and Kamtai Waine v. MVIT [1993] PNGLR 446.

91.	In Martin Kilte, the Plaintiff was the driver of a motor vehicle. He claimed to have received his injuries when he collided with a roller which he said was being driven in a negligent manner such that it was responsible for the accident. A police constable went to the scene of the accident a day after the accident and did an investigation. He said he saw the vehicle that was driven by the Plaintiff and the roller at the scene. The road accident report was not tendered. Neither the policeman nor the Plaintiff could establish the registration and insurance details of the roller and therefore the Court dismissed the claim for not establishing the basis of his claim.

92.	In Kamtai Waine, the claimants were 3 dependent wives and 3 infant children of a provincial minister who died from injuries received whilst he was a passenger in a motor vehicle which went out of control and plunged down a slope into a river. A police witness gave evidence that due to the condition of the road and the bad weather there was nothing the driver could have done to stop the vehicle sliding off the road. No charges were laid against the driver. The police witness also gave evidence that he recorded the vehicle's registration number and expiry date and noted that there was a third party insurance. There was, however, no safety sticker. He had sighted the registration papers, but did not conduct a search of the traffic registry. The defendant argued that the vehicle was not properly identified. The Court held, inter alia, that the unchallenged oral evidence of a police witness as to the registration number, expiry date of such registration, the existence of a third party insurance policy and registration papers was enough evidence to satisfy the court as to the identity, registration, and insurance of the vehicle on the balance of probabilities, notwithstanding the lack of a safety sticker and a traffic registry search.

93.	In the present case and as I have alluded to earlier, the Road Accident Report was compiled by C/Sgt. Waran based on information given by the driver and his independent observations at the scene of the alleged accident. Most of the details in the Road Accident Report including registration and insurance would have been given by the driver. There is no evidence of C/Sgt. Waran making enquiries either about the registration of the motor vehicle at the Traffic Registry or about the status of insurance with the Defendant. Observations at the scene of the alleged accident by C/Sgt. Waran were independent, but it is not, in my view, conclusive evidence of the identity of the particular motor vehicle involved in the accident at the scene visited. It could have been caused by another motor vehicle altogether.

94.	I think the Plaintiffs have not established the basis of their claims on the balance of probabilities.

Whether the Plaintiffs were involved in the alleged accident?

95.	Whilst the determination of the first issue in favour of the Defendant should ordinarily end further discussion of the remaining issues, I think it is proper that I discuss this issue to highlight some other defects in the Plaintiffs’ claims.
 
Submissions of the Plaintiffs

96.	Counsel submitted that there is sufficient evidence supported by evidence from independent sources namely, Ruben Sakiki, C/Sgt. Waran and Doctors Kulunga and Jacob of the Plaintiffs’ sustaining injuries to their right eyes from the alleged accident. That is the probable cause which the Court should accept given the Defendant failed to put to the Plaintiffs that the injuries did not result from the alleged accident or from other causes or that the claim was false. 

97.	As to Yuye Kulau’s injuries, counsel relied on Ruben Sakiki’s evidence and emphasised that; the Plaintiff had a cut to his right eye; the eye was completely out; there was bleeding from the eye; and he was in immense pain. The Plaintiff was hospitalised at Kol Health Centre for a total of 4 days commencing on 6 October 1998 and after being discharged on 10 October 1998, he was on medication for 1 week. He also sustained injuries to his left scalp and forehead. Counsel also submitted that Doctors Kulunga and Jacob confirm that Yule Kulau’s right eye was completely gone or sunk in, a 100% loss of an eye, which may have been attributed to the alleged accident. 

98.	As to Tupo Kankuwa’s injuries, counsel also relied on Ruben Sakiki’s evidence and emphasised that; the Plaintiff’s right eye was sutured; and he was also bleeding from his right eye and nose. The Plaintiff was hospitalised at Kol Health Centre for a total of 5 days commencing on 6 October 1998 and discharged on 11 October 1998 counsel said. Counsel also submitted that; Doctors Kulunga and Jacob confirm that Tupo Kankuwa sustained injuries to his right eye attributed to blunt trauma caused by the alleged accident; Dr Kulunga actually found that there was an ulcer growing in the right eye; and both doctors assessed the Plaintiff’s loss of vision of between 60% (Dr.Kulunga) and 65% (Dr. Jacob) in the injured eye.

99.	Apart from other minor injuries he suffered, the Plaintiff also sustained injuries to his nose, said counsel.

Submissions of the Defendant

100.	Ms. Naipet basically submitted that the evidence of the Plaintiffs about how the injuries were sustained by each of them were identical, but had irregularities and therefore the Court should reject their evidence and dismiss the claims. 

101.	She also contended that if other claims in connection with the alleged accident had been settled by the Defendant as was claimed by the Plaintiffs, that did not in any way prove liability of the Defendant relying on Adevu. If indeed they were settled, which she said she was not aware of, they would have been done on a without prejudice basis and without admission of liability. 

Comments on submissions of parties 

102.	There are serious flaws in the Plaintiffs’ evidence which cast doubt as to the genuineness of their claims. It will suffice for me to point out below the main ones.

101.	According to the Road Accident Report, there were 4 passenger casualties namely Betty Bam, Goi Ape, Yuye Kulau and Tupo Kankuwo.

102.	Yuye Kulau was a male adult aged 24 years who was hospitalised for injuries to his head area. He would have been aged about 34 years by now. The Plaintiff is an elderly person much older than a person aged about 34 years. The Medical Practitioner’s Certificate issued by Ruben Sakiki reveals that the Plaintiff had a cut on his right eye and bleeding from the eye resulting in permanent damage. He was under medication for 2 weeks. The document entitled Treatment Sheet for Ward 1 for the period 6 to 10 October 1998 shows under the names column that the patient was a male aged 27 years who had a fractured arm. The injury suffered which is a fractured arm is a total contradiction to the injuries described in the Medical Practitioner’s Certificate (eye injury) and the Road Accident Report (head injury). There is no claim for a fractured arm. The patient was a young male who by now would be about aged 37 years. Again the Plaintiff is an elderly person much older than a person aged about 37 years. 

103.	Tupo Kankuwo was a male adult aged 26 years who was hospitalised for injuries to his head. He would have been aged about 36 years at the time of the trial. The Plaintiff is an elderly person. The Medical Practitioner’s Certificate issued by Ruben Sakiki reveals that the Plaintiff had a cut to his left eye (not involving the pupil) which was sutured and he later recovered. Dry dressing was applied to the right eye and nose on daily "OPD" medication. I set out the remarks of Ruben Sakiki below:-

"REMARKS:

His left eye not involved the pupile was stiched and later recovered. Right eye and nose applied dry dressing. Was on daily OPD medication." (sic)

104.	Clearly Ruben Sakiki’s remarks show that the left eye was cut and sutured. The pupil was not cut. The Plaintiff’s right eye was not sutured as has been submitted by his counsel to the contrary. The Plaintiff gave evidence that his right eye was injured when it was pierced by a piece of glass from the broken windscreen. There is an obvious contradiction here not supported by medical evidence of independent witnesses in Doctors Kulunga and Jacob. Doctor Kulunga said the loss of vision of about 60% in the right eye which had an ulcer was caused by trauma. Doctor Jacob confirmed the prognosis of Dr. Kulunga when he also said that the Plaintiff’s loss of vision of 65% was associated with blunt trauma and not by broken glass hitting the eye coupled with old age.

105.	Dr. Kulunga also gave evidence that he compiled his medical reports based on information received from the Plaintiffs including medical records apart from his independent findings after examining them. When commenting on the history of the medical treatment administered to Tupo Kankuwa, he reported that the Plaintiff received medical treatment at the Minj Health Centre for his injury. This also questions the genuineness of Ruben Sakiki’s evidence about Tupo Kankuwa being given treatment at the Kol Health Centre in the absence of any evidence suggesting that Minj Health Centre is the same as Kol Health Centre or that it was an error on the part of Dr. Kulunga. 

106.	The document entitled Treatment Sheet for Ward 1 for the period 6 to 10 October 1998 shows under the names column that the Plaintiff was a male aged 45 years who had injuries to both eyes. 

107.	It appears that the major injury sustained was to the left eye, but despite that there is no specific claim for that injury. The patient at the relevant time was aged 45 years who by now would be aged about 55 years. This is contradictory to the Road Accident Report where the age of the injured passenger was reported as 26 years and who by now would be aged about 36 years.

108.	The evidence of Ruben Sakiki and the Plaintiffs are in my view totally unreliable, contradictory and appear to have been concocted towards defrauding the Defendant. My view is also supported by the fact that it is, I think, against logic and common sense for the Plaintiffs suffering from alleged serious eye injuries and other bodily injuries not to have been taken to the nearest medical facilities at Kundiawa and Kudjip instead of being driven for a long distance, which would usually take about half a day as the evidence suggest, all the way to the Plaintiffs’ village and then they had to be taken to the Kol Health Centre for treatment which as the Plaintiffs’ evidence suggest is also far from their village. 

108.	The reasons advanced by the Plaintiffs as to why the owner could not travel into Kundiawa for an interview with the police or why the motor vehicle could not be taken into Kundiawa because of the long distance, road conditions and the motor vehicle was undergoing repairs or that the driver was no longer alive to give evidence having gone to Kimbe and met his demise there were, I think, all part of this fraudulent scheme to make out their claims against the Defendant without testing the evidence that they might have given. In fact, the owner and the driver might be innocent of any fraud.

CONCLUSION

109.	For reasons I have alluded to above, I will dismiss the claims of the Plaintiffs firstly because they have not established the basis of their claims on the balance of probabilities and secondly the claims appear to be fraudulent. 

110.	I would recommend that the Plaintiffs be prosecuted for perjury.

ORDER

111.	I make the following orders:-

1.	The Plaintiffs’ claims are dismissed.

2.	The Plaintiffs’ are to pay the Defendant’s costs.

________________________________________
Kopunye lawyers: Lawyers for the Plaintiffs
Mirupasi Lawyers: Lawyers for the Defendant